View:
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) April 11, 1997
Registrant; State of Incorporation; IRS Employer
COMMISSION FILE NUMBER ADDRESS; AND TELEPHONE NUMBER IDENTIFICATION NO.
1-5532 PORTLAND GENERAL CORPORATION 93-0909442
(an Oregon Corporation)
121 SW Salmon Street
Portland, Oregon 97204
(503) 464-8820
1-5532-99 PORTLAND GENERAL ELECTRIC COMPANY 93-0256820
(an Oregon Corporation)
121 SW Salmon Street
Portland, Oregon 97204
(503) 464-8000
121 S.W. SALMON STREET, PORTLAND, OREGON 97204
(Address of principal executive offices) (zip
code)
Registrant's telephone number, including area code 503-464-8820
ITEM 5. OTHER EVENTS
REVISED MERGER AGREEMENT - On April 14, 1997 Enron Corp. (Enron) and Portland
General Corporation (PGC) announced that their Boards of Directors have
approved an amendment (Amendment) to the Amended and Restated Agreement and
Plan of Merger, dated as of July 20, 1996 and amended and restated as of
September 24, 1996, by and among PGC, Enron, and Enron Oregon Corp. (Merger
Agreement). The amendment provides for a new share exchange ratio. The previous
ratio of 1.0 to 1.0 has been adjusted to a ratio of 0.9825 shares of Enron
common stock for every 1.0 share of PGC common stock. The amended Merger
Agreement requires PGC shareholder approval. A shareholder vote is currently
scheduled to take place at PGC's annual shareholder meeting scheduled for June
24, 1997.
Enron and PGC intend to submit a proposal for merger approval that includes a
commitment that Portland General Electric Company (PGE) customers will receive
guaranteed merger benefits of $141 million. This proposal will respond to the
final report issued by the staff (Staff) of the Oregon Public Utility
Commission (OPUC) on April 11, 1997. The Staff's final report recommended that
the merger not be approved because Enron had not shown that the merger would
serve PGE customers in the public interest. The parties to the merger will have
the opportunity to file comments on the final Staff report and to present oral
arguments to the OPUC. An order from the OPUC is scheduled for June 4, 1997.
For further background information regarding the proposed merger see the PGE
and PGC report on Form 10-K for the year ended December 31, 1996 and report on
Form 8-K dated March 12, 1997.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION
AND EXHIBITS
Exhibit 2 - First Amendment to Amended and Restated Agreement and Plan of
Merger, dated as of April 14, 1997, by and among Enron Corp., Portland General
Corporation and Enron Oregon Corp.
Signatures
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrants have duly caused this report to be signed on their behalf by the
undersigned hereunto duly authorized.
Portland General Corporation
Portland General Electric Company
April 16, 1997 By /S/ JOSEPH E. FELTZ
Joseph E. Feltz
Assistant Controller
Assistant Treasurer
FIRST AMENDMENT TO AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
THIS FIRST AMENDMENT TO AMENDED AND RESTATED AGREEMENT AND PLAN
OF MERGER, dated as of April 14, 1997 (this "AMENDMENT"), is by and among
Enron Corp., a Delaware corporation ("ENRON"), Portland General
Corporation, an Oregon corporation ("PGC"), and Enron Oregon Corp.
(formerly New Falcon Corp.), an Oregon corporation and wholly owned
subsidiary of Enron (the "COMPANY").
WHEREAS, the parties hereto have entered into that certain
Amended and Restated Agreement and Plan of Merger, dated as of July 20,
1996 and amended and restated as of September 24, 1996 (as amended hereby,
the "AGREEMENT") (capitalized terms used but not defined herein shall have
the respective meanings ascribed to such terms in the Agreement);
WHEREAS, the Mergers and the transactions contemplated by the
Agreement have been approved by the holders of Enron Common Stock at the
Enron Special Meeting and by the holders of the PGC Common Stock at the PGC
Special Meeting, each of which meetings was held on November 12, 1996;
WHEREAS, the Mergers and the transactions contemplated by the
Agreement have received all regulatory approvals required in connection
therewith, with the exception of the approval of the OPUC;
WHEREAS, the parties desire to amend certain provisions of the
Agreement in order to facilitate receipt of OPUC's approval of Enron's
merger approval application; and
WHEREAS, the boards of directors of Enron and PGC have approved
and deemed it advisable and in the best interests of their respective
shareholders to consummate the transactions on the terms set forth in the
Agreement, as amended hereby;
NOW THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and agreements contained
herein, the parties hereto agree as follows:
1. Section 2.2(b) of the Agreement is hereby amended so that the
first sentence thereof is deleted and replaced with the following:
Each share of PGC Common Stock issued and outstanding immediately
prior to the Second Effective Time (other than shares canceled
pursuant to SECTION 2.2(A)) shall be converted into 0.9825 shares of
Company Common Stock (the "PGC CONVERSION RATIO").
2. Sections 2.5(b) and (c) of the Agreement are hereby amended by
replacing each reference to "$41.75" with a reference to "$40.25." The
parties acknowledge that although Section 2.5 also contains provisions
relating to the adjustment of the Ceiling Price and the Floor Price, the
parties agree that the provisions of the Agreement relating to the Ceiling
Price and the Floor Price ceased to be applicable upon the obtaining of the
PGC Shareholders' Approval and the Enron Shareholders' Approval.
3. The parties acknowledge that references in the Agreement to the
term "as of the date hereof," or "as of the date of this Agreement" shall
continue to refer to July 20, 1996, unless otherwise specified. Unless
otherwise specified, each reference in the Agreement (or in any other
document referring to the Agreement) to "this Agreement" shall be to the
Agreement, as amended hereby.
4. Section 4.8 of the Agreement is hereby amended to read in its
entirety as follows, and shall be deemed to be made as of the date of this
Amendment:
Section 4.8 REGISTRATION STATEMENT AND PROXY STATEMENT. None
of the information supplied or to be supplied by or on behalf of Enron
that is included or incorporated by reference in (i) (A) the
registration statement on Form S-4 to be filed with the SEC by the
Company in connection with the issuance of shares of Company Common
Stock in the PGC Merger (the "REGISTRATION STATEMENT") or (B) the
Post-Effective Amendment (as defined in SECTION 7.2(A)) will, at the
time the Registration Statement or the Post-Effective Amendment
becomes effective under the Securities Act, contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, (ii) the joint proxy statement/prospectus in
definitive form, relating to the meetings of the shareholders of PGC
and Enron to be held in connection with the Mergers and the prospectus
relating to the Company Common Stock to be issued in the PGC Merger
(the "JOINT PROXY STATEMENT") will, at the date such document is
mailed to such shareholders and, as the same may be amended or
supplemented, at the times of such meetings, contain any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading and (iii) the
Supplemental Proxy Statement (as defined in SECTION 7.20(A)) in
definitive form, relating to the Supplemental PGC Shareholders'
Meeting (as defined in SECTION 7.20(E)) will, at the date such
document is mailed to the shareholders of PGC and, as the same may be
amended or supplemented, at the times of such meeting, contain any
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading. All
documents that Enron is responsible for filing with the SEC in
connection with the transactions contemplated herein shall comply as
to form in all material respects with the applicable requirements of
the Securities Act and the rules and regulations thereunder and the
Exchange Act and the rules and regulations thereunder.
2
5. Article IV of the Agreement is hereby amended by adding the
following representations, which are made as of the date of this Amendment:
Section 4.18 AUTHORITY, NON-CONTRAVENTION AND STATUTORY
APPROVALS RELATING TO THE AGREEMENT AS AMENDED BY THE FIRST AMENDMENT.
(a) AUTHORITY. Enron and the Company have all requisite power
and authority to enter into the First Amendment (as defined in SECTION
4.19) and, subject to obtaining the Enron Required Statutory
Approvals, to consummate the transactions contemplated by this
Agreement. The execution and delivery of the First Amendment and the
consummation by Enron and the Company of the transactions contemplated
by this Agreement have been duly authorized by all necessary corporate
action on the part of Enron or the Company, as the case may be. The
First Amendment has been duly and validly executed and delivered by
Enron and the Company and, assuming the due authorization, execution
and delivery of this Agreement by PGC, the Agreement constitutes the
legal, valid and binding obligation of Enron and the Company,
enforceable against Enron and the Company in accordance with its
terms.
(b) NON-CONTRAVENTION. Except as disclosed in Section 4.4(b) of
the Enron Disclosure Schedule, the execution and delivery of the First
Amendment by Enron do not, and the consummation of the transactions
contemplated by this Agreement will not, result in an Enron Violation
under any provisions of (i) the certificate of incorporation, bylaws
or similar charter documents of Enron or any of its subsidiaries or,
to Enron's knowledge, any of its joint ventures, (ii) subject to
obtaining the Enron Required Statutory Approvals, any statute, law,
ordinance, rule, regulation, judgment, decree, order, injunction,
writ, permit or license of any Governmental Authority, applicable to
Enron or any of its subsidiaries or, to Enron's knowledge, any of its
joint ventures, or any of their respective properties or assets or
(iii) subject to obtaining the Enron Required Consents, any note,
bond, mortgage, indenture, deed of trust, license, franchise, permit,
concession, contract, lease or other instrument, obligation or
agreement of any kind to which Enron or any of its subsidiaries or, to
Enron's knowledge, any of its joint ventures, is now a party or by
which any of them or any of their respective properties or assets may
be bound or affected, excluding from the foregoing clauses (ii) and
(iii) such Enron Violations as would not have, in the aggregate, an
Enron Material Adverse Effect.
(c) STATUTORY APPROVALS. Except for (i) the OPUC Approval (as
defined in SECTION 7.3(A)), (ii) a declaration of effectiveness by the
SEC of the Post-Effective Amendment (as defined in SECTION 7.2), (iii)
the matters set forth in items (c) and (f) on Section 4.4(c) of the
Enron Disclosure Schedule, (iv) those declarations, filings,
registrations, notices, authorizations, consents, findings or
approvals that have already been made and (v) any supplemental filings
relating to any of the foregoing required by the execution of the
First Amendment or the transactions contemplated thereby, there are no
Enron Required Statutory Approvals in connection with the execution
and delivery of the First Amendment
3
by Enron and the Company or the
consummation by Enron and the Company of the transactions contemplated
by this Agreement the failure to obtain, make or give which would
have, in the aggregate, an Enron Material Adverse Effect.
Section 4.19 VOTE REQUIRED FOR FIRST AMENDMENT. No additional
vote by the holders of any capital stock of Enron is required in
connection with the First Amendment to this Agreement, which amendment
was executed as of April 14, 1997 (the "FIRST AMENDMENT").
6. Section 5.8 of the Agreement is hereby amended to read in its
entirety as follows, and shall be deemed to be made by PGC as of the date
of this Amendment:
Section 5.8 REGISTRATION STATEMENT AND PROXY STATEMENT. None
of the information supplied or to be supplied by or on behalf of PGC
that is included or incorporated by reference in (i) (A) the
Registration Statement or (B) the Post-Effective Amendment will, at
the time the Registration Statement or the Post-Effective Amendment
becomes effective under the Securities Act, contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, (ii) the Joint Proxy Statement will, at the
date that document is mailed to the shareholders of PGC and Enron and,
as the same may be amended or supplemented, at the times of the
meetings of such shareholders to be held in connection with the
Merger, contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements
therein, in light of the circumstances under which they are made, not
misleading and (iii) the Supplemental Proxy Statement will, at the
date that document is mailed to the shareholders of PGC and, as the
same may be amended or supplemented, at the time of the Supplemental
PGC Shareholders Meeting contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they are
made, not misleading. All documents that PGC is responsible for
filing with the SEC in connection with the transactions contemplated
herein shall comply as to form in all material respects with the
applicable requirements of the Securities Act and the rules and
regulations thereunder and the Exchange Act and the rules and
regulations thereunder.
7. Article V of the Agreement is hereby amended by adding the
following representations, which are made as of the date of this Amendment:
Section 5.18 AUTHORITY, NON-CONTRAVENTION AND STATUTORY
APPROVALS RELATING TO THE AGREEMENT AS AMENDED BY THE FIRST AMENDMENT.
(a) AUTHORITY. PGC has all requisite power and authority to
enter into the First Amendment and, subject to the Supplemental PGC
Shareholders' Approval (as defined in SECTION 5.19) and the PGC
Required Statutory Approvals, to consummate the transactions
contemplated by this Agreement. The execution and delivery of the
First Amendment and
4
the consummation by PGC of the transactions
contemplated by this Agreement and thereby have been duly authorized
by all necessary corporate action on the part of PGC, subject to
obtaining the Supplemental PGC Shareholders' Approval. The First
Amendment has been duly and validly executed and delivered by PGC and,
assuming the due authorization, execution and delivery hereof by Enron
and the Company, constitutes the legal, valid and binding obligation
of PGC enforceable against PGC in accordance with its terms.
(b) NON-CONTRAVENTION. Except as disclosed in Section 5.4(b) of
the PGC Disclosure Schedule, the execution and delivery of the First
Amendment by PGC do not, and the consummation of the transactions
contemplated by this Agreement will not, result in a PGC Violation
under any provisions of (i) the articles of incorporation, bylaws or
similar governing documents of PGC or any of its subsidiaries or joint
ventures, (ii) subject to obtaining the PGC Required Statutory
Approvals and the Supplemental PGC Shareholders' Approval, any
statute, law, ordinance, rule, regulation, judgment, decree, order,
injunction, writ, permit or license of any Governmental Authority
applicable to PGC or any of its subsidiaries or joint ventures or any
of their respective properties or assets, or (iii) subject to
obtaining PGC Required Consents, any note, bond, mortgage, indenture,
deed of trust, license, franchise, permit, concession, contract, lease
or other instrument, obligation or agreement of any kind to which PGC
or any of its subsidiaries or joint ventures is now a party or by
which any of them or any of their respective properties or assets may
be bound or affected, excluding from the foregoing clauses (ii) and
(iii) such PGC Violations as would not have, in the aggregate, a PGC
Material Adverse Effect.
(c) STATUTORY APPROVALS. Except for (i) the OPUC Approval, (ii)
a declaration of effectiveness by the SEC of the Post-Effective
Amendment, (iii) the matters set forth in items (5) and (6) on Section
5.4(c) of the PGC Disclosure Schedule, (iv) those declarations,
filings, registrations, notices, authorizations, consents, findings or
approvals that have already been made and (v) any supplemental filings
relating to any of the foregoing required by the execution of the
First Amendment or the transactions contemplated thereby, there are no
PGC Required Statutory Approvals in connection with the execution and
delivery of the First Amendment by PGC or the consummation by PGC of
the transactions contemplated by this Agreement, the failure to
obtain, make or give which would have, in the aggregate, a PGC
Material Adverse Effect.
Section 5.19 VOTE REQUIRED FOR FIRST AMENDMENT. The approval
of the First Amendment and the PGC Merger by the holders of a majority
of the shares of outstanding PGC Common Stock (the "SUPPLEMENTAL PGC
SHAREHOLDERS' APPROVAL") is the only vote of the holders of any class
or series of the capital stock of PGC required to approve this
Agreement (as amended by the First Amendment), the PGC Merger and the
other transactions contemplated by this Agreement.
Section 5.20 SUPPLEMENTAL OPINION OF FINANCIAL ADVISOR. PGC
has received the opinion of Goldman, Sachs & Co. dated the date of the
First Amendment to the effect that,
5
as of such date, the consideration
to be received by the holders of PGC Common Stock in the PGC Merger
pursuant to this Agreement (as amended by the First Amendment) is fair
from a financial point of view to the holders of PGC Common Stock.
8. Section 7.3(a) of the Agreement is hereby amended to read in its
entirety as follows:
(a) REGULATORY PLANS. Set forth on Appendix I are the terms of
the revised regulatory plan to be submitted for approval by the OPUC
(the "REVISED OPUC PLAN"). To the extent that the regulatory plans
set forth in Schedule 7.3(a) (the "REGULATORY PLANS") relate to the
OPUC or the state regulatory approval process, such regulatory plans
(and Schedule 7.3(a)) are hereby amended to reflect the Revised OPUC
Plan. The approval of the OPUC contemplated by the Revised OPUC Plan
is referred to herein as the "OPUC APPROVAL." PGC and Enron shall
cooperate in good faith, consult with each other and obtain each
other's consent and agreement (which shall not be unreasonably
withheld) on all components of, significant steps toward the
achievement of the Revised OPUC Plan and obtaining the OPUC Approval
and with respect to significant filings, communications, agreements,
arrangements or consents, written or oral, formal or informal, with
the OPUC and/or any intervenor or representative thereof.
9. Article VII of the Agreement is hereby amended by adding Section
7.20, which shall read as follows:
Section 7.20 PGC SUPPLEMENTAL PROXY STATEMENT AND REGISTRATION
STATEMENT.
(a) PREPARATION AND FILING. As promptly as reasonably
practicable after the date of the First Amendment, the parties shall
prepare and file with the SEC a post-effective amendment to the
Registration Statement and a Proxy Statement (the "SUPPLEMENTAL PROXY
STATEMENT") in connection with the Supplemental PGC Shareholders'
Meeting. The parties shall take such actions as may be reasonably
required to cause the post-effective amendment to the Registration
Statement (the "POST-EFFECTIVE AMENDMENT") to be declared effective
under the Securities Act as promptly as practicable after such filing.
The parties shall also take such action as may be reasonably required
to cause the shares of Company Common Stock and Company Preferred
Stock issuable in connection with the Mergers to be registered under
or to obtain an exemption from registration under applicable state
"blue sky" or securities laws, and to promptly make any filings
required in connection with the First Amendment and the transactions
contemplated thereby; PROVIDED, HOWEVER, that none of the Company, PGC
or Enron shall be required to register or qualify as a foreign
corporation or to take any other action that would subject it to
general service of process in any jurisdiction in which the Company
will not, following the Effective Time, be so subject. Each of the
parties shall furnish all information concerning itself that is
required or customary for inclusion in the Supplemental Proxy
Statement and/or the Post-Effective Amendment. If, at any time prior
to the Effective Time, Enron discovers any event or circumstance
relating
6
to Enron or any of its subsidiaries, or its or their
respective officers or directors, that should be set forth in an
amendment to the Post-Effective Amendment or a supplement to the
Supplemental Proxy Statement, Enron shall promptly inform PGC. If, at
any time prior to the Effective Time, PGC discovers any event or
circumstance relating to PGC or any of its subsidiaries, or its or
their respective officers or directors that should be set forth in an
amendment to the Post-Effective Amendment or a supplement to the
Supplemental Proxy Statement, PGC shall promptly inform Enron. No
representation, covenant or agreement contained in this Agreement is
made by any party hereto with respect to information supplied by any
other party hereto for inclusion in the Post-Effective Amendment or
the Supplemental Proxy Statement. The Post-Effective Amendment and
the Supplemental Proxy Statement shall comply as to form in all
material respects with the Securities Act and the rules and
regulations thereunder.
(b) LETTER OF ENRON'S ACCOUNTANTS. Following receipt by Arthur
Andersen LLP, Enron's independent auditors, of an appropriate request
from PGC pursuant to SAS No. 72, Enron shall use best efforts to cause
to be delivered to the Company and PGC a letter of Arthur Andersen
LLP, dated a date within two business days before the effective date
of the Post-Effective Amendment and addressed to the Company and PGC,
in form and substance reasonably satisfactory to the Company and PGC
and customary in scope and substance for "cold comfort" letters
delivered by independent public accountants in connection with
registration statements and proxy statements similar to the Post-
Effective Amendment and the Supplemental Proxy Statement.
(c) LETTER OF PGC'S ACCOUNTANTS. Following receipt by Arthur
Andersen LLP, PGC's independent auditors, of an appropriate request
from Enron pursuant to SAS No. 72, PGC shall use best efforts to cause
to be delivered to the Company and Enron a letter of Arthur Andersen
LLP dated a date within two business days before the effective date of
the Post-Effective Amendment and addressed to the Company and Enron,
in form and substance satisfactory to the Company and Enron and
customary in scope and substance for "cold comfort" letters delivered
by independent public accountants in connection with registration
statements and proxy statements similar to the Post-Effective
Amendment and the Supplemental Proxy Statement.
(d) FAIRNESS OPINION. Prior to mailing the Supplemental Proxy
Statement to the shareholders of PGC, PGC shall have received an
opinion from Goldman, Sachs & Co., dated the date of the Supplemental
Proxy Statement, to the effect that, as of the date thereof, the
consideration to be received by holders of PGC Common Stock pursuant
to the PGC Merger is fair to such holders from a financial point of
view.
(e) SUPPLEMENTAL PGC SHAREHOLDER APPROVAL. PGC shall, as
promptly as reasonably practicable after the date of the First
Amendment (i) take all steps reasonably necessary to call, give notice
of, convene and hold a meeting of its shareholders, which may be
either a special meeting or annual meeting (the "SUPPLEMENTAL PGC
SHAREHOLDERS'
7
MEETING"), for the purpose of securing the Supplemental
PGC Shareholders' Approval, (ii) distribute to its shareholders the
Supplemental Proxy Statement in accordance with applicable federal and
state law and with its articles of incorporation and bylaws, which
Supplemental Proxy Statement shall contain the recommendation of the
Board of Directors of PGC that its shareholders approve the PGC
Merger, this Agreement and the transactions contemplated by this
Agreement (as amended by the First Amendment), (iii) use all
reasonable efforts to solicit from its shareholders proxies in favor
of the approval and adoption of the PGC Merger this Agreement (as
amended by the First Amendment) and the transactions contemplated by
this Agreement and to secure the Supplemental PGC Shareholders'
Approval, and (iv) cooperate and consult with Enron with respect to
each of the foregoing matters; PROVIDED, that nothing contained in
this SECTION 7.20(A) shall prohibit the PGC Board of Directors from
failing to make or from withdrawing or modifying its recommendation to
the PGC shareholders hereunder if the Board of Directors of PGC, after
consultation with and based upon the written advice of independent
legal counsel, determines in good faith that such action is necessary
for such Board of Directors to comply with its fiduciary duties to its
shareholders under applicable law.
10. Sections 7.12, 9.1 (f) and 9.3 of the Agreement are hereby
amended to (a) replace each reference to "PGC Special Meeting" with
"Supplemental PGC Shareholders' Meeting" and (b) replace each reference to
"PGC Shareholders' Approval" with "Supplemental PGC Shareholders'
Approval."
11. Section 7.18 of the Agreement is hereby amended to read in its
entirety as follows:
Section 7.18 EXPENSES. Subject to SECTION 7.1 and SECTION 9.3,
all costs and expenses incurred in connection with this Agreement and
the transactions contemplated hereby and thereby shall be paid by the
party incurring such expenses, except that those expenses incurred in
connection with printing the Joint Proxy/Registration Statement, the
Post-Effective Amendment and the Supplemental Proxy Statement, as well
as the filing fee relating thereto, shall be shared equally by Enron,
on the one hand, and PGC, on the other hand.
12. Section 8.1(a) of the Agreement is hereby amended to read in its
entirety as follows:
(a) SHAREHOLDER APPROVALS. The PGC Shareholders' Approval, the
Supplemental PGC Shareholder Approval and the Enron Shareholders'
Approval shall have been obtained.
13. Section 8.1(c) of the Agreement is hereby amended to read in its
entirety as follows:
(c) REGISTRATION STATEMENT AND POST-EFFECTIVE AMENDMENT. The
Registration Statement and the Post-Effective Amendment shall have
become effective in accordance with the provisions of the Securities
Act, and no stop order suspending such effectiveness shall have been
issued and remain in effect.
8
14. The second sentence of Section 8.1(e) of the Agreement is hereby
amended to read in its entirety as follows:
A "FINAL ORDER" means action by the relevant regulatory authority that
has not been reversed, stayed, enjoined, set aside, annulled or
suspended, with respect to which any waiting period prescribed by law
before the transactions contemplated hereby may be consummated has
expired (but without the requirement for expiration of any applicable
appeal period), and as to which all conditions to the consummation of
such transactions prescribed by law, regulation or order have been
satisfied.
15. Section 8.2(f) of the Agreement is hereby amended to read in its
entirety as follows:
(f) APPROVAL OF REGULATORY PLANS. The OPUC shall have issued a
Final Order that approves the Revised OPUC Plan that (i) does not
include the imposition or threatened imposition of any change to the
payment obligations, direct or indirect, of PGC, Enron or any
affiliate of either of them set forth in Sections 2(19) and 2(20) of
Appendix 1, (ii) adopts the conditions set forth in Appendix I
(including those set forth in Sections 2(19) and 2(20)), substantially
in the form set forth in Appendix I, and (iii) does not include the
imposition or threatened imposition of any other conditions that are
substantive. For purposes of this SECTION 8.2(F), the term
"threatened imposition" shall mean a formal or informal expression of
intent by any Governmental Authority. For purposes of this SECTION
8.2(F), the term "pay" shall include, without limitation, any
imputation of revenues or reduction of revenues, and the term "paying"
and "payment" shall have corresponding meanings. In order for Enron
to assert that the condition set forth in this SECTION 8.2(F) has not
been satisfied as a result of any action by a Governmental Authority
(including without limitation a Final Order of the OPUC), Enron must
give written notice to PGC to such effect no later than five business
days after the date of the receipt by Enron of notice that such
Governmental Authority has taken such action.
16. Section 9.1(b) of the Agreement is hereby amended to read in its
entirety as follows:
(b) by Enron or PGC, by written notice to the other, if the
Effective Time shall not have occurred on or before the first
anniversary of the date hereof (the "TERMINATION DATE"); PROVIDED,
HOWEVER, that either party may extend the Termination Date for an
additional six months (or three months if the condition set forth in
SECTION 8.2(F) has been satisfied but the condition set forth in
SECTION 8.1(A) has not been satisfied) from such anniversary if (i)
all the conditions to consummation of the Mergers set forth in Article
VIII hereof have either been satisfied or are then capable of being
satisfied by such date, other than the conditions set forth in
SECTIONS 8.1(A) AND/OR 8.2(F) and (ii) such party believes that there
is a reasonable probability that such condition will be satisfied by
or before such extended Termination Date; and PROVIDED FURTHER, that
the right to terminate this Agreement under this SECTION 9.1(B) shall
not be available to any party whose failure to fulfill any
9
obligation
under this Agreement has been the cause of, or resulted in, the
failure of the Effective Time to occur on or before the termination
date;
17. Section 9.1(c) of the Agreement is hereby amended to read in its
entirety as follows:
(c) by Enron or PGC, by written notice to the other party, if (i)
the Enron Shareholders' Approval shall not have been obtained at the
Enron Special Meeting, including any adjournments thereof, (ii) the
PGC Shareholders' Approval shall not have been obtained at the PGC
Special Meeting, including any adjournments thereof or (iii) the
Supplemental PGC Shareholders' Approval shall not have been obtained
at the Supplemental PGC Shareholders' Meeting, including any
adjournments thereof.
18. Section 9.1 of the Agreement is hereby amended by adding a new
paragraph (n), which shall read as follows:
(n) by Enron, by written notice to PGC, if the OPUC issues an
order (regardless of whether such order has become a Final Order) that
disapproves the Mergers or that approves the Mergers in a manner that
does not satisfy the condition set forth in Section 8.2(f).
19. Except as expressly set forth herein, the terms and provisions of
the Agreement are hereby ratified and confirmed.
20. This Amendment may be executed in one or more counterparts, each
of which shall be deemed to be an original, but all of which shall
constitute one and the same agreement.
10
IN WITNESS WHEREOF, Enron, PGC and the Company have caused this
Amendment to be signed by their respective officers thereunto duly
authorized as of the date first above written.
ENRON CORP.
By: /S/ J. CLIFFORD BAXTER
J. Clifford Baxter
Senior Vice President, Corporate
Development
PORTLAND GENERAL CORPORATION
By: /S/ JOSEPH M. HIRKO
Joseph M. Hirko
Senior Vice President and Chief Financial
Officer
ENRON OREGON CORP.
By: /S/ EDMUND P. SEGNER, III
Edmund P. Segner, III
President
11